847 F.3d 1214
10th Cir.2017Background
- The panel decision and petition for rehearing en banc arise from a challenge to a City of Bloomfield display of the Ten Commandments on public property. The panel found the display problematic under this circuit’s Establishment Clause jurisprudence; the city had placed the monument alongside secular documents and used disclaimers and private-led dedication events.
- Appellant sought rehearing en banc; a majority of active judges denied the petition. Chief Judge Tymkovich and Judge Kelly voted to grant rehearing en banc.
- Judge Kelly filed a dissent from the denial of rehearing en banc arguing the court’s Establishment Clause precedents are erroneous and inconsistent with the original public meaning of “establishment of religion.”
- Kelly emphasizes historical practice (European state churches, colonial establishments, early state constitutions, and First Congress actions) to argue that “establishment” historically meant government control over a church (Erastianism), not incidental government acknowledgment or accommodation of religion.
- Kelly contends the panel and circuit improperly apply Lemon and an endorsement-style “reasonable observer” test to passive religious monuments, contrary to Supreme Court guidance (Van Orden and Town of Greece) that favors history-and-practice analysis for monuments and legislative prayer.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Ten Commandments display on public land violates the Establishment Clause | The display conveys government endorsement of religion and thus violates the Establishment Clause under the circuit’s Lemon/endorsement framework | The display is a historical, nonsectarian monument displayed with secular documents and disclaimers, and does not constitute governmental establishment of religion | Rehearing en banc denied; panel ruling stands (majority declined en banc review); dissent would have revisited the test and likely upheld the display under a historical approach |
| Whether Lemon (and endorsement) is the proper test for passive monuments | Plaintiff: Lemon/endorsement appropriate to assess purpose/effect/entanglement and message to reasonable observer | Defendant: For passive historical monuments, Lemon is a poor fit; history-and-tradition approach (Van Orden/Breyer concurrence) should govern | Circuit denied rehearing; dissent argues Lemon/endorsement is being misapplied and that Van Orden’s history-focused approach should limit Lemon’s reach |
| Role of historical practice in Establishment Clause analysis | Plaintiff: Contemporary tests focusing on endorsement and effect control, not merely history | Defendant: Historical understanding of “establishment” (government control over church) and First Congress practices permit some government acknowledgments and religious monuments | Dissent stresses Town of Greece/Marsh/Van Orden support use of historical practices; majority decline to revisit circuit precedent by en banc vote |
| Standards for “curing” religious taint via mitigations (disclaimers, accompanying secular displays, private dedication) | Plaintiff: Such mitigations may be insufficient to cure a governmental endorsement when the display communicates a religious message | Defendant: Disclaimers, proximity to secular texts, and private-led dedication show no governmental endorsement or control | Panel decision remains in force; dissent criticizes circuit’s skeptical application of these cures and urges deference to local decisions absent clear historical-establishment elements |
Key Cases Cited
- Van Orden v. Perry, 545 U.S. 677 (2005) (plurality and Breyer concurrence emphasize history-and-tradition approach for passive monuments)
- Town of Greece v. Galloway, 134 S. Ct. 1811 (2014) (establishes that historical practices and understandings inform Establishment Clause analysis for legislative prayer)
- McCreary County v. ACLU, 545 U.S. 844 (2005) (applies Lemon/endorsement to Ten Commandments displays created with a religious purpose)
- Lynch v. Donnelly, 465 U.S. 668 (1984) (recognizes historical official references to religion in public life and examines governmental displays)
- Marsh v. Chambers, 463 U.S. 783 (1983) (upholds legislative prayer based on historical practice)